EN BANC

[G.R. No. L-4352. September 28, 1951.]

VICTOR BOROVSKY , petitioner, vs . THE COMMISSIONER OF

IMMIGRATION and THE DIRECTOR OF PRISONS , respondents.

Victor Borovsky in his own behalf.

First Assistant Solicitor General Roberto Gianzon and Solicitor Florencio Villamor,
for respondents.

SYLLABUS

1. ALIENS; STATELESS ALIENS HABEAS CORPUS. — Aliens illegally staying in

the Philippines have no right of asylum therein (Soewapadji vs. Wixon, Sept. 13, 1946,
157 F. ed., 289, 290) even if they are "stateless." It is no less true however that foreign
nationals, not enemy, against whom no criminal charges have been formally made or
judicial order issued, may not indefinitely be kept in detention. The protection against
deprivation of liberty without due process of law and except for crimes committed
against the laws of the land is not limited to Philippine citizens but extends to all
residents, except enemy aliens, regardless of nationality. Whether an alien who entered
the country in violation of its immigration laws may be detained as long as the
Government is unable to deport him, is beside the point. Therefore, the writ of habeas
corpus will issue commanding the respondents to release the petitioner from custody
upon these terms: The petitioner shall be placed under the surveillance of the
immigration authorities or their agents in such form and manner as may be deemed
adequate to insure that he keep peace and be available when the Government is ready
to deport him. The surveillance shall be reasonable and the question of reasonableness
shall be submitted to this Court or to the Court of First Instance of Manila for decision
in case of abuse. He shall also put up a bond for the above purpose in the amount of
P5,000 with sufficient surety or sureties, which bond the Commissioner of Immigration
is authorized to exact by Section 40 of Commonwealth Act No. 613.

DECISION

TUASON , J : p

This is a second petition for habeas corpus led by the petitioner with this Court,
the first having been denied in a decision promulgated on June 30, 1949.
Victor A. Borovsky, the petitioner, claims to be a stateless citizen, born in
Shanghai, China, of Russian parentage. He came to the Philippines in 1936 and had
resided therein ever since, if the period of his detention be included.
On June 24, 1946, by order of the Commissioner of Immigration, the petitioner
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 was arrested for investigation as to his past activities. Following his arrest, a warrant
for his deportation was issued by the Deportation Board, which is said to have found
him an undesirable alien, a vagrant and habitual drunkard. The petitioner protests that
he was not given a hearing, nor informed of the charges preferred against him. This
point however is unimportant in this proceeding.
In May, 1947, the petitioner was put on board a ship which took him to Shanghai,
but he was not allowed to land there because he was not a national of China and was
not provided with an entry visa. He was therefore brought back to Manila and was
con ned to the new Bilibid Prison in Muntinlupa until December 8, 1947, when he was
granted provisional release by the President through the Secretary of Justice for a
period of six months. Before the expiration of that period, namely, on March 20, 1948,
the Commissioner of Immigration caused his rearrest and he has been in con nement
in the abovementioned prison ever since.
In his return to the writ, the Solicitor General in behalf of the respondents alleges
that the Commissioner of Immigration "has availed of every opportunity presented to
carry out the deportation order as shown by the fact that when the petitioner was
enjoying his provisional release after the unsuccessful attempt to deport him to
Shanghai, China, he was again re-arrested and own to Cebu for the purpose of placing
him on board a Russian vessel which had called at the port, with a view to carrying out
the deportation order issued against him, but said deportation was not carried out for
the reason that the captain of the said boat refused to take on board the herein
petitioner on the ground that he had no permission from the Russian government to
take on board the petitioner." It is further alleged that "the immigration of cials have
taken steps regarding the disposition of those foreigners subject to deportation while
awaiting availability of transportation or arrangements to the place where they may be
sent."
In this Court's majority decision on the rst application it was observed that the
applicant's detention was temporary, and it was held that "temporary detention is a
necessary step in the process of exclusion or expulsion of undesirable aliens and that
pending arrangements for his deportation, the Government has the right to hold the
undesirable alien under con nement for a reasonable length of time." It took note of the
fact that "this Government desires to expel the alien, and does not relish keeping him at
the people's expense . . . making efforts to carry out the decree of exclusion by the
highest of cer of the land." No period was xed within which the immigration
authorities were to carry out the contemplated deportation beyond the statement that
"The meaning of 'reasonable time' depends upon the circumstances, specially the
dif culties of obtaining a passport, the availability of transportation, the diplomatic
arrangements with the governments concerned and the efforts displayed to send the
deportee away," but the Court warned that "under established precedents, too long a
detention may justify the issuance of a writ of habeas corpus."
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and
the writer of this decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted
for outright discharge of the prisoner from custody. Mr. Justice Paras quali ed his
dissent by stating that he might agree "to a further detention of the herein petitioner,
provided that he be released if after six months, the Government is still unable to
deport him." This writer joined in the latter dissent but thought that two months
constituted reasonable time.
Over two years having elapsed since the decision aforesaid was promulgated,
the Government has not found ways and means of removing the petitioner out of the
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 country, and none are in sight, although, it should be said in justice to the deportation
authorities, it was through no fault of theirs that no ship or country would take the
petitioner.
Aliens illegally staying in the Philippines have no right of asylum therein
(Soewapadji vs. Wixon, Sept. 13, 1946, 157 F. ed., 289, 290), even if they are "stateless,"
which the petitioner claims to be. It is no less true however as impliedly stated in this
Court's decision, supra, and numerous American decisons, that foreign nationals, not
enemy, against whom no criminal charges have been formally made or judicial order
issued, may not inde nitely be kept in detention. The protection against deprivation of
liberty without due process of law and except for crimes committed against the laws of
the land is not limited to Philippine citizens but extends to all residents, except enemy
aliens, regardless of nationality. Whether an alien who entered the country in violation of
its immigration laws may be detained for as long as the Government is unable to
deport him, is beside the point and we need not decide. There is no allegation that the
petitioner's entry into the Philippines was not lawful; on the contrary, the inference from
the pleadings and the Deportation Board's ndings is that he came to and lived in this
country under legal permit.
Moroever, by its Constitution (Art. II, sec. 3) the Philippines "adopts the generally
accepted principles of international law as part of the law of Nation." And in a resolution
entitled "Universal Declaration of Human Rights" and approved by the General Assembly
of the United Nations of which the Philippines is a member, at its plenary meeting on
December 10, 1948, the right to life and liberty and all other fundamental rights as
applied to all human beings were proclaimed. It was there resolved that "All human
beings are born free and equal in degree and rights" (Art. 1); that "Everyone is entitled to
all the rights and freedom set forth in this Declaration, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, nationality or
social origin, property, birth, or other status (Art. 2); that "Everyone has the right to an
effective remedy by the competent national tribunals for acts violating the fundamental
rights granted him by the Constitution or by law" (Art. 8); that "No one shall be
subjected to arbitrary arrest, detention or exile" (Art. 9); etc.
In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power
to release from custody an alien who has been detained an unreasonably long period of
time by the Department of Justice after it has become apparent that although a warrant
for his deportation has been issued, the warrant can not be effectuated;" that "the
theory on which the court is given the power to act is that the warrant of deportation,
not having been able to be executed, is functus of cio and the alien is being held
without any authority of law." The decision cited several cases which, it said, settled the
matter de nitely in that jurisdiction, adding that the same result had been reached in
innumerable cases elsewhere. The cases referred to were United States ex rel. Ross vs.
Wallis, 2 Cir. 279 F. 401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs.
Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F.
857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425.
The most recent case, as far as we have been able to nd, was that of
Staniszewski vs. Watkins (1948), 80 Fed. Supp. 132, which is nearly foursquare with the
case at hand. In that case a stateless person, formerly a Polish national, resident in the
United States since 1911 and many times serving as a seaman on American vessels
both in peace and in war, was ordered excluded from the United States and detained at
Ellis Island at the expense of the steamship company, when he returned from a voyage
on which he had shipped from New York for one or more European ports and return to
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 the United States. The grounds for his exclusion were that he had no passport or
immigration visa, and that in 1937 had been convicted of perjury because in certain
documents he represented himself to be an American citizen. Upon his application for
release on habeas corpus, the Court released him upon his own recognizance. Judge
Leibell, of the United States District Court for the Southern District of New York, said in
part:

"When the return to the writ of habeas corpus came before this court, I
suggested that all interested parties . . . make an effort to arrange to have the
petitioner ship out to some country that would receive him as a resident. He is a
native-born Pole but the Polish Consul has advised him in writing that he is no
longer a Polish subject. This Government does not claim that he is a Polish
citizen. His attorney says he is stateless. The Government is willing that he go
back to the ship, but if he were sent back aboard ship and sailed to the port
(Cherbourg, France) from which he last sailed to the United States he would
probably be denied permission to land. There is no other country that would take
him, without proper documents.
"It seems to me that this is a genuine hardship case and that the petitioner
should be released from custody on proper terms . . .
"What is to be done with the petitioner? The government has had him in
custody almost seven months and practically admits it has no place to send him
out of this country. The steamship company, which employed him as one of a
group sent to the ship by the Union, with proper seaman's papers issued by the
United States Coast Guard, is paying $3.00 a day for petitioner's board at Ellis
Island. It is no fault of the steamship company that petitioner is an inadmissible
alien as the immigration officials describe him . . .
"I intend to sustain the writ of habeas corpus and order the release of the
petitioner on his own recognizance. He will be required to inform the immigration
officials at Ellis Island by mail on the 15th of each month stating where he is
employed and where he can be reached by mail. If the government does succeed
in arranging for petitioner's deportation to a country that will be ready to receive
him as a resident, it may then advise the petitioner to that effect and arrange for
his deportation in the manner provided by law."
Although not binding upon this Court as a precedent, the case aforecited offered
a happy solution to the quandary in which the parties here nd themselves, solution
which we think is sensible, sound and compatible with law and the Constitution. For this
reason, and since the Philippine law on immigration was patterned after or copied from
the American law and practice, we choose to follow and adopt the reasoning and
conclusions in the Staniszewski decision with some modi cations which, it is believed,
are in consonance with the prevailing conditions of peace and order in the Philippines.
It was said or insinuated at the hearing of the petition at bar, but not alleged in
the return, that the petitioner was engaged in subversive activities, and fear was
expressed that he might join or aid the disloyal elements if allowed to be at large.
Bearing in mind the Government's allegation in its answer that "the herein petitioner was
brought to the Philippines by the Japanese forces," and the fact that Japan is no longer
at war with the United States or the Philippines nor identi ed with the countries allied
against those nations, the possibility of the petitioner's entertaining or committing
hostile acts prejudicial to the interest and security of this country seems remote.
If we grant, for the sake of argument, that such a possibility exists, still the
petitioner's unduly prolonged detention would be unwarranted by law and the
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 Constitution, if the only purpose of the detention be to eliminate a danger that is by no
means, actual, present, or uncontrollable. After all, the Government is not impotent to
deal with or prevent any threat by such measure as that just outlined. The thought
eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in
connection with the application for bail of ten Communists convicted by a lower court
of advocacy of violent overthrow of the United States Government is, in principle
pertinent and may be availed of at this juncture. Said the learned Jurist:
"The Government's alternative contention is that defendants, by
misbehavior after conviction, have forfeited their claim to bail. Grave public
danger is said to result from what they may be expected to do, in addition to what
they have done since their conviction. If I assume that defendants are disposed to
commit every opportune disloyal act helpful to Communist countries, it is still
difficult to reconcile with traditional American law the jailing of persons by the
courts because of anticipated but as yet uncommitted crimes. Imprisonment to
protect society from predicted but unconsummated offenses is so unprecedented
in this country and so fraught with danger of excesses and injustice that I am
loath to resort to it, even as a discretionary judicial technique to supplement
conviction of such offenses as those of which defendants stand convicted.
xxx xxx xxx
"But the right of every American to equal treatment before the law is
wrapped up in the same constitutional bundle with those of these Communists. If
in anger or disgust with these defendants we throw out the bundle, we also cast
aside protection for the liberties of more worthy critics who may be in opposition
to the government of some future day.
xxx xxx xxx
"If, however, I were to be wrong on all of these abstract or theoretical
matters of principle, there is a very practical aspect of this application which must
not be overlooked or underestimated - that is the disastrous effect on the
reputation of American justice if I should now send these men to jail and the full
Court later decide that their conviction is invalid. All experience with litigation
teaches that existence of a substantial question about a conviction implies a
more than negligible risk of reversal. Indeed this experience lies back of our rule
permitting and practice of allowing bail where such questions exist, to avoid the
hazard of unjustifiably imprisoning persons with consequent reproach to our
system of justice. If that is prudent judical practice in the ordinary case, how
much more important to avoid every chance of handing to the Communist world
such an ideological weapon as it would have if this country should imprison this
handful of Communist leaders on a conviction that our own highest Court would
confess to be illegal. Risks, of course, are involved in either granting or refusing
bail. I am not naive enough to underestimate the troublemaking propensities of
the defendants. But, with the Department of Justice alert to the dangers, the worst
they can accomplish in the short time it will take to end the litigation is preferable
to the possibility of national embarrassment from a celebrated case of unjustified
imprisonment of Communist leaders. Under no circumstances must we permit
their symbolization of an evil force in the world to be hallowed and glorified by
any semblance of martyrdom. The way to avoid that risk is not to jail those men
until it is finally decided that they should stay jailed."
If that case is not comparable with ours on the issues presented, its underlying
principle is of universal application. In fact, its ratio decidendi applies with greater force
to the present petition, since the right of accused to bail pending appeal of his case, as
in the case of the ten Communists, depends upon the discretion of the court, whereas
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 the right to be enlarged before formal charges are instituted is absolute. As already
noted, not only are there no charges pending against the petitioner, but the prospects
of bringing any against him are slim and remote.
Premises considered, the writ will issue commanding the respondents to release
the petitioner from custody upon these terms: The petitioner shall be placed under the
surveillance of the immigration authorities or their agents in such form and manner as
may be deemed adequate to insure that he keep peace and be available when the
Government is ready to deport him. The surveillance shall be reasonable and the
question of reasonableness shall be submitted to this Court or to the Court of First
Instance of Manila for decision in case of abuse. He shall also put up a bond for the
above purpose in the amount of P5,000.00 with suf cient surety or sureties, which
bond the Commissioner of Immigration is authorized to exact by Section 40 of
Commonwealth Act No. 613. No costs will be charged.
Paras, C.J., Feria, Bengzon, Padilla and Reyes, JJ., concur.
Jugo, J., concurs in the result.

Separate Opinions
PABLO , M., disidente:

La primera causa de Habeas Corpus (G. R. No. L-2852) presentada por el hoy
recurrente ha sido denegada por este Tribunal en 30 de junio de 1949. Las
conclusiones de hecho de dicha decision son las siguientes:
"In December, 1946, the President of the Philippines ordered petitioner's
deportation as undesirable alien, after a proper investigation by the Deportation
Board upon charges of being a vagrant and habitual drunkard, engaged in
espionage activities, whose presence and conduct endangered the public interest.
Pursuant to such order, Borovsky was placed aboard a vessel bound for
Shanghai; but the authorities there declined to admit him for lack of the proper
visa, which the Chinese consulate in this country had refused to give. Wherefore
he was brought back to the Philippines. Thereafter he was temporarily released
pending further arrangements for his banishment. And when subsequently a
Russian boat called at Cebu, Borovsky was re- arrested and transported to Cebu
for deportation; however, the captain of the boat declined to take him, explaining
he had no permission from his government to do so. Wherefore the petitioner is
now confined in the premises of the New Bilibid Prisons — not exactly as a
prisoner — while the Government is exerting efforts to ship him to a foreign
country."
Por segunda vez el recurrente reclama que tiene derecho a ser puesto in libertad.
En mi opinion, esta segunda solicitud debe denegarse. Hay una orden de deportacion
contra el y si esa orden no se ha realizado aún, no es porque el gobierno no lo quiera,
sino porque no ha encontrado hasta ahora medios para efectuarlo.

Un vago, borracho y espia no debe permanecer ni un minuto en Filipinas; es un

elemento indeseable no solamente aqui sino tal vez en su propio pais. Si las
autoridades de Shanghai de donde el habia procedido al venir aqui, le habian rechazado
cuando alli fue deportado, debian tener buenas razones; y si el capitan del barco ruso
no quiso recibir al recurrente alegando que no tenia permiso de su gobierno, sera
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 porque el recurrente no debia merecer ninguna clase de consideracion. El capitan del
barco hubiera podido ingeniar cualquier medio para repatriar al recurrente si este
merecia la pena de tal esfuerzo.
El recurrente no tiene derecho a estar aqui libre por sus defectos personales,
especialmente hoy en que elementos malguiados desean destruir la sociedad matando
a mansalva viejos, niños y mujeres embarazadas. El recurrente seria otro elemento mas
que empeoraria la situacion. Si esta hoy detenido provisionalmente en Muntinglupa no
es porque lo quiera el Gobierno; tan pronto como haya transporte disponible o en
cuanto el encuentre medios de salir de Filipinas, se le pondria en libertad.
Citaremos un caso hipotetico: Si al anochecer, el dueño de una casa encuentra en
el portico de ella un borracho, vago y andrajoso, suplicando se le de pan y, por
compasion, se le alimenta y se le cede una habitacion en la cochera, y durante su
estancia se dedica a actividades de espia, se emborracha y da mal ejemplo a la
servidumbre, esta obligado el dueño de la casa a retenerle y dejarle libre a deambular
por donde quiera? Creemos que el intruso ha abusado de los privilegios de un huesped.
El dueño de la casa tiene perfecto derecho a echarle y que vaya con sus impertinencias
a otra parte. La hospitalidad nacional no debe ser menos que la domestica o individual.
El extranjero puede permanecer en un territorio mientras se porta bien, pero en cuanto
se dedica a actividades de espionaje, en cuanto se deja llevar por el vicio de la
borrachera y no busca trabajo honrado, desde ese momento pierde su derecho a
permanecer. De ahi es que el ingenio humano invento la deportacion como un
instrumento de que se vale el gobierno para expulsar del territorio a extranjeros
indeseables.
Se invoca la "Universal Declaration of Human Rights", una de cuyas disposiciones
establece que "no one shall be subjected to arbitrary arrest, detention or exile." (Art. 9).
El recurrente no tiene derecho a invocar a su favor esta disposicion puesto que no se le
arresto arbitrariamente ni se le detiene sin ningún motivo. Su arresto y detencion estan
justi cados por su conducta. Un beodo empedernido, un espia, un vago, es peor que un
microbio del colera morbo; debe ser desechado para que no cause males a la
sociedad. Su deportacion es un medio necesario e indispensable para preservar la
salud de la nacion.
Se cita el caso de U. S. contra Nichols, en el cual se dice que el Juzgado tiene
poder para liberar a un extranjero que ha sido detenido por un tiempo irrazonablemente
largo por el Departamento de Justicia, aunque se haya expedido una orden de
deportacion, cuando aparece que esta no se puede efectuar (47 Fed. Rep. 201). No
existen pruebas de que ya es imposible encontrar barcos para la deportacion del
recurrente. Las condiciones pueden mejorar. El recurrente solamente fue detenido
desde diciembre de 1946; no han transcurrido cinco años. En cambio, William Martin
Jurgans fue arrestado en 9 de marzo de 1920; en 20 de mayo se decreto su
deportacion por el Secretario del Trabajo por sus actividades comunistas; solicito su
libertad por medio del recurso de habeas corpus, que se denego en 16 de febrero de
1927; transcurrieron mas de seis años y no se le pudo deportar porque "the necessary
arrangements for his deportation could obviously not be made." (District Court of
Minnesota, 17 F, 2nd Series, 507).
La duracion de la detencion no tiene importancia en casos de la misma
naturaleza; depende de muchas circunstancias. Asi en Moraitis vs. Delany, 46 F. Supp.
425, se dijo:
"What constitutes a reasonable time for the detention of the petitioner in
custody for deportation depends upon the facts and circumstances of particular
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 cases. This court cannot shut its eyes to the vitally important interests of this
country at this time with respect to the bottleneck of shipping, when every
available ship, domestic and foreign, must be utilized to the utmost without delay
consequent upon the lack of available seamen. Under this present conditions the
court should be liberal indeed in aiding the executive branch of the government in
the strict enforcement of laws so vitally necessary in the common defense. There
is sound authority for this view in United States ex. rel. Schlimm vs. Howe,
D.C.N.Y. 222 F. 96, 97, where Circuit Judge Lacombe refused to release an alien
who had come here from Germany and was ordered deported in 1915 when, by
reason of the then existing war between Germany and England, his deportation to
Germany was not possible. It was said:
"'At the present time there is no regular passenger ocean service to German
ports, so the authorities are unable to forward him, and are holding him until
some opportunity of returning him to Germany may present itself. His continual
detention is unfortunate, but certainly is not illegal. His present condition can be
alleviated only by the action of the executive branch of the government. A federal
court would not be justified in discharging him.'
xxx xxx xxx
"If he is not really fit for sea service, it is not probable that he would be
forced into it, although he may be able to serve his government in some other
capacity. But however that may be, while this country has no power under existing
legislation to impress him into sea service against his will, he has no just cause to
be relieved from the strict enforcement of our deportation laws, and to remain at
liberty in this country as a sanctuary contrary to our laws."
Se invoca tambien el asunto de Staniszewski vs. Watkins (80 Fed. Supp., 132)
que no tiene similitud con la presente causa. Staniszewski habia estado residiendo en
America desde 1911, trabajando como marino en barcos mercantes americanos en
tiempos de paz y de guerra, y se ordeno su detencion en Ellis Island cuando volvio a
America procedente de un viaje a Europa, por no tener papeles de inmigracion.
Staniszewski ya era habitante de los Estados Unidos por bastante tiempo; se dedicaba
a la ocupacion de marino, que es un o cio honroso y decente; pero el recurrente, como
ya ha dicho este Tribunal, es un borracho habitual, un vago, y se dedicaba al espionaje.
No debe confundirse un marino con un vago; el primero se alimenta con el producto del
sudor de su frente, el segundo no hace nada, explota la caridad pública, y, si no
consigue alimento por las buenas, indudablemente tendra que emplear recursos
ilicitos. Un espia, especialmente en estos tiempos criticos por que atraviesa el pais,
pone en peligro la seguridad del estado; su libertad representa un peligro para el
estado y se le debe denegar. Opino que el recurrente debe ser detenido hasta que se
encuentren medios de deportarle.
Poner al recurrente bajo la vigilancia de las autoridades de inmigracion o de sus
agentes es aumentar las atenciones y gastos del gobierno por motivos baladies; el
Estado no esta hoy en condiciones de emplear policias para el uso exclusivo del
recurrente. Tampoco estoy conforme con que se le exija que preste anza de P5,000.
Tal exigencia equivale a una burla. Quien se ara de un beodo, vago y espia? Si consigue
prestar anza, sera porque alguien esta interesado en su libertad para que pueda
continuar con sus actividades de espia.

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